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Lawyer, Attorney, LES
Serhii Kolisnyk has 15 years of experience in human rights activities. He has worked in the prosecutor’s office of Ukraine, the State Tax Service. Since 2016 he has been managing partner of two lawyers’ associations: LES (specialization: business protection, tax dispute resolution, protection in white-collar crime, legal practice in the field of urban planning) and Ecosecurity (specialization: protection of the right to a clean and safe environment, ensuring environmental safety, legal support of enterprises during planned activities). He conducts scientific work, and publishes articles in specialist legal publications and takes an active part in legislative activities as both an expert and consultant.
Environment in Ukraine
The global community is becoming more and more concerned, with every passing year, about protecting the environment, ensuring the sustainable development of countries and regions and protecting the interests of future generations. In modern conditions there is a provision of ecological and anthropogenic safe living conditions for citizens, preservation and restoration of the natural environment among the priorities of Ukraine’s national interests.
Today, there is a direct link between environmental pollution and significant deterioration of human health, so against the background of this problem there is the acute issue not only of proper legal protection of the environment, but also strict compliance with the law by economic entities, because violations of environmental legislation lead to the suspension of an enterprise’s activity via a court.
Among a number of codified regulations in Ukraine that regulate the field of environmental protection and the associated minimization of impact on it, there are laws that Ukrainian and foreign businesses face before the start of their activities, and their provisions must be taken into account by enterprises and during further work. Such acts include: Laws of Ukraine On Environmental Impact Assessment, On Strategic Environmental Assessment, On Air Protection, On Ensuring Sanitary and Epidemic Welfare of the Population, On Environmental Protection, On the Permit System in the Sphere of Economic Activity.
In Ukraine, all start-ups need to understand that most activities are found within the scope of the Law of Ukraine On Environmental Impact Assessment. Therefore, before starting such activities, it is necessary to undergo the procedure provided by this law and obtain the first permit — the decision on the environmental impact assessment, which will describe the possible risks to the environment from the activity and mandatory conditions of this activity.
This procedure is implemented in Ukrainian legislation taking into account European practice, and aims to prevent environmental damage and promote the rational use and reproduction of natural resources. The law provides for obtaining a decision as a permit for further planned activities (construction, reconstruction, technical re-equipment, expansion, re-profiling) and subsequent acquisition of permits for construction work, subsoil use, etc.
The law also provides for a procedure related to public discussions of projects and submission of comments and suggestions to the public, which must be taken into account by the company, as well as taken into account by the Ministry of Environment and Natural Resources, regional departments of ecology and regional administrations.
It is prohibited to carry out activities without a decision on the environmental impact assessment. In the event of violation of this requirement the activity of the enterprise is suspended in a court.
Given the constant growth of the urgency of environmental issues, as well as the legal personality of public environmental organizations, the latter can, in case of inaction of regulatory authorities, apply to an administrative court to suspend the activities of an enterprise.
There is relevant case law of the Supreme Court on this issue. By the way, there is also our own practice, which has confirmed the effectiveness of this rule. Therefore, we advise businesses in Ukraine to pay more attention to the provisions of the Law of Ukraine On Environmental Impact Assessment, and very carefully approach the choice of companies that prepare reports on environmental impact assessment and other technical documentation. Due attention should also be paid to legal support of this procedure, as it is vital to ensure strict compliance with the provisions of this Law. Omission of even the slightest formality is regarded by a court as the issuance of a permit in violation of the procedure and leads to the cancellation of the decision in court.
Preventing such a situation is quite possible, but it requires consolidated efforts of lawyers and environmentalists working on the commissioned project, because their quality overall result is the key to the company’s further smooth operation, avoiding disputes with regulators and the public.
Particular attention should be paid to the fact that today the conclusions of the environmental impact assessment are provided at the discretion of subjective and not always professional officials of a state body. This is due to lack of:
- clear legally-established grounds for refusing to issue a decision on the environmental impact assessment;
- by-laws that would establish specific requirements for writing environmental impact assessment reports depending on the areas of activity;
- collegial expert commissions for environmental impact assessment, provided for in Article 10 of the Law of Ukraine On Environmental Impact Assessment;
- statutory liability for decisions taken on the issuance or refusal to issue decisions on an environmental impact assessment.
Therefore, in order to avoid negative consequences and prevent possible corruption situations, it is crucial to cooperate with specialists who, in case of illegal actions by government agencies or the public, will be able to defend the legal position of the company in court.
In support of this, we can cite two examples from our own practice. The company, taking into account the comments we provided in the public interest, was initially denied a decision on the environmental impact assessment. The comments submitted by us became the basis for the refusal, as this activity had a huge impact on the environment. However, approximately within a month, the business entity submitted a similar report for the re-procedure and not eliminating the previous deficiencies and public comments re-submitted the same documents and received a positive decision during the re-procedure in the regional department of ecology. This conclusion was challenged by us in court. After the court opened the proceedings, the Danish investor realized that it would not be possible to ruin things in Ukraine, as the local public is extremely active. Even the top leaders of the region, who were guarantors and lobbyists of the investor’s activity, could not help him.
Another example is when our client was denied a decision during the environmental impact assessment procedure due to the allegedly insufficiently described impact of its activity on the environment. But we were confident in the quality of the report, as we had worked on it together with hydrologists, air quality specialists and qualified specialists in the field of ecology, built a quality legal position, went to court and were confident that we would put an end to this issue.
These examples show that, in both the first and second situations, it is the lawyers who are the driving force in the event of any disputes.
It’s unfortunate, but the concept of environmental security for some officials in Ukraine is nothing more than a component of manipulation, and all this is possible due to four factors we mentioned earlier and to correct which the association’s lawyers are already working to develop legislative initiatives and test them in expert working groups and public councils at central executive bodies. In particular, the public council at the Ministry of Environmental Protection and Natural Resources, which includes the Ecosecurity Lawyers’ Association, is considering and discussing guidelines for developing an environmental impact assessment report, as well as regulations on expert commissions at the Ministry of Environment. Therefore, we hope that two of the four conditions will be eliminated in the near future.
Given the considerable experience of our lawyers in environmental impact assessment procedures, it should be noted that we face a low level of preparation of documentation for this procedure. The high demand for such services creates oversaturation of the market with unprofessional and unqualified professionals who, in order to generate income produce, usually for foreign investors, a “product” on the basis of which it is impossible to assess the likely impact on the environment, life and human health due to disregard for the technological features of activity, location of production capacities and other individual factors. This often creates conflicts with the public, prolongs the procedure for issuing negative decisions and encourages entrepreneurs to abandon the procedure altogether, which no-one would be advised to do.
Compliance with sanitary and epidemiological legislation is also an important factor. Thus, in accordance with the requirements of Article 15 of the Law of Ukraine On Ensuring Sanitary and Epidemic Welfare of the Population, State Sanitary Rules for Planning and Development of Settlements, approved by Order of the Ministry of Health of Ukraine No. 173 as of 19 June 1996, industrial, agricultural and other projects that are sources of environmental pollution by chemical, physical and biological factors, when it is impossible to create waste-free technologies, should be separated from housing by sanitary protection zones, which should primarily provide for the creation of the most favorable living conditions, preservation and promotion of public health.
The territory of the sanitary protection zone should not be considered as a reserve for new construction, reconstruction, overhaul of the enterprise facilities and expansion of the residential area. Compliance with the boundaries of the established sanitary protection zone is the most relevant subject of discussion at all public hearings, both in procedures for environmental impact assessment and strategic environmental assessment, and in the event of disputes with the local population.
Therefore, before starting operations enterprises must be extremely prudent in the way they approach the location of production facilities and potential sources of emissions, pay attention to the distance to the nearest residential buildings, reservoirs, soil conditions, nature reserves, historical and cultural sites, other industrial enterprises, which already have an impact on the environment, as these problems cannot be eliminated during their activity.
The conclusion is obvious to me: in order to achieve these goals, entrepreneurs should work exclusively with professionals, environmental experts and lawyers known in the market and reputable among regulatory authorities. This will not only save money and effort, but also make the business safe and successful.